It's About Time for Congress to Improves the Copyright Office

A bill, H.R. 1695, sponsored by Bob Goodlatte, Chairman of the House Judiciary Committee, is moving through the House of Representatives. It has the soporific title of the “Register of Copyrights Selection and Accountability Act of 2017.” If you have never heard of the Register of Copyrights, much less this bill, you are not alone. When a bill has a boring title, it often has the potential to do a great deal of good.

The bill would place the federal Office of the Copyright outside of its current location, the Library of Congress. The structure of the bill is remarkably similar to proposals put forward in a Hudson Institute paper a little more than a year ago by Steven Tepp and Ralph Oman.

Copyrights are one of the few areas where American businesses still have a competitive advantage globally. This form of intellectual property accounts for more than $1 trillion of the American economy and much of the economic growth in recent decades.

American copyrights have enormous value and marketability around the world. Consumers everywhere want copyrighted American works from software to motion pictures to recorded music to images of Disney characters. Consumers want American copyrighted works because American artists and creators—not government agencies—make compelling products.

In a world in which intellectual property were honored and respected, there might be little reason for an improved Copyright Office. But intellectual property, and copyrights in particular, are under attack both at home and around the world. Piracy of intellectual property and copyrights is rampant. Pirate web sites proliferate on the Internet.

Our government does not have a coordinated response. Each year, the U.S. Trade Representative issues the special Section 301 Report on Intellectual Property describing abuses of copyrights in other countries. Each year, many countries are identified for not protecting copyrights. Each year, our government does little about it, in part because no one views it as their primary responsibility.

In many years, the federal government is confronted with subtle policy issues related to copyrights. Copyrights are affected indirectly in many bills before Congress and in many different decisions of the executive branch. Presently, no federal agency can advise independently on these issues.

The size of a federal bureaucracy is usually positively related to the economic importance of the industry at issue. Tens of thousands of Washington government officials oversee the regulation of the health care industry. So too with agriculture and energy. Even the Patent and Trademark Office, housed in the Department of Commerce, is large. The heads of these government agencies are appointed by the president and are ultimately answerable to the president.

But copyright is an enormous American industry with hardly any Washington bureaucracy. In Washington, the Office of the Copyright has a staff of 385 and a budget of approximately $45 million. It is difficult to name a smaller Washington bureaucracy. It does not need to be much larger as it neither regulates nor impedes copyrights. Historically, it has served more as a registry.

In the pecking order of Washington organizations, the Copyright Office is close to last. The head of the Copyright Office does not report to the president. He reports to the Librarian of Congress. That’s right: the Librarian of Congress, who in turn reports to various members of Congress.

H.R. 1695 is a great start to remedy that situation, but it could be improved. For example, under the current bill, the Librarian of Congress would still select the Associate Registers of Copyrights. An improved bill would remove the Librarian of Congress from all responsibilities with respect to the Office of Copyright.

An astute observer might suggest that the obscurity of the Copyright Office and benign neglect in Washington have benefitted the copyright industries. Perhaps. The copyright industries have done quite well economically for decades without a forceful voice in government to advocate for them or to look after their interests. Have they done well because of neglect, or despite neglect?

Having an improved Copyright Office will not turn the world on its head. But it may make the operations of the 385-strong staff just a little more visible and just a lot more influential. The next time the U.S. Trade Representative says that other countries are stealing American copyrighted works, the head of the Copyright Office might take notice—without having to check with the Librarian of Congress first.